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United States District Court, D. Utah, Central DivisionApr 21, 2005
Case No. 2:04-CV-1014 TC. (D. Utah Apr. 21, 2005)

Case No. 2:04-CV-1014 TC.

April 21, 2005


On October 12, 2002, in case No. 2:02CR53, Petitioner Dana Howard Mullen was found guilty of violating 18 U.S.C. § 922(g) (possession of a firearm by a felon) and sentenced to 120 months imprisonment. Mr. Mullen appealed to the Tenth Circuit challenging the denial of his motion to suppress. The district court's decision was upheld on August 1, 2003. This matter is now before the court on Mr. Mullen's motion to correct sentence under 28 U.S.C. § 2255. Mr. Mullen claims that: (1) his sentence was in excess of what was found by the jury and therefore illegal underApprendi v. New Jersey, 530 U.S. 466 (2000); and (2) his counsel was ineffective both at trial and on appeal. For the reasons set forth below, Petitioner's motion to correct sentence is DENIED.

Excessive Sentence

Petitioner claims that his sentence was excessive pursuant toApprendi because the sentence was based on facts not found by the jury beyond a reasonable doubt. "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490; United States v. Bailey, 286 F.3d 1219, 1221 (10th Cir. 2002).

Because of Mr. Mullen's failure to object at trial or challenge the alleged Apprendi error on direct appeal, "he may not obtain collateral relief unless he demonstrates `cause' excusing his procedural default and `actual prejudice' resulting from the error. Bailey, 286 F.3d at 1221. See United States v. Frady, 456 U.S. 152, 168 (1982); see also United States v. Mora, 293 F.3d 1213, 1217-19 (10th Cir. 2002).

Mr. Mullen was convicted by a jury of possession of a forearm by a felon in violation of 18 U.S.C. § 922(g) and sentenced to imprisonment for 120 months. The maximum penalty prescribed for such a violation is imprisonment for ten years. 18 U.S.C. 924(a)(2). Mr. Mullen's sentence was the maximum allowed by statute without further fact finding. He has not alleged facts to support an argument the statutory maximum was increased through judicially-determined facts and therefore cannot demonstrate "actual prejudice" to support this claim.

Ineffective Assistance of Counsel

To demonstrate ineffective assistance of counsel, "a petitioner must establish both that his attorney's representation was deficient and that he was prejudiced by that deficiency." James v. Gibson, 211 F.3d 543, 555 (10th Cir. 2000), cert. denied, 531 U.S. 1128 (2001) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). This standard applies to sentencing proceedings and plea hearings as well as at trial.U.S. v. Glover, 97 F.3d 1345, 1349 (10th Cir. 1996). To succeed on the deficiency prong, a petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." James, 211 F.3d at 555 (citing Strickland, 466 U.S. at 689). "Judicial scrutiny of counsel's performance is highly deferential." Id.

"An ineffective assistance claim may be resolved on either performance or prejudice grounds alone." Kennedy, 225 F.3d at 1197 (citing Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000). To succeed on the prejudice prong, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. There is a strong presumption that counsel provided effective assistance, and a § 2255 petitioner has the burden of proof to overcome that presumption. James, 211 F.3d at 555.

a. Interstate Commerce

Mr. Mullen asserts that he was prejudiced by counsel's stipulation to an element of the crime for which he was convicted and also by counsel's failure to raise that issue on appeal. Specifically, he argues that his counsel improperly stipulated that the firearm in question had affected, or been used in, interstate commerce. Mr. Mullen also asserts that counsel, on appeal, failed to raise the Apprendi issue discussed above.

In order to succeed on these arguments, Mr. Mullen must demonstrate that, but for counsel's alleged errors, the result of the proceedings would have been different. While Mr. Mullen argues that the government could not have proven that firearm he was found to possess had been used in interstate commerce, he provides no evidence that the firearm did not cross state lines. Therefore Mr. Mullen has not demonstrated that he was prejudiced by his counsel's decision. James, 211 F.3d at 555

b. Apprendi

Mr. Mullen has asserted that his counsel was ineffective through failure to raise the issue of excessive sentencing underApprendi on appeal. As stated above, Mr. Mullen's sentence was within the maximum prescribed by statute absent further fact finding and he has not alleged facts to support an argument to the contrary. Mr. Mullan cannot demonstrate that his counsel's failure to raise the Apprendi issue on appeal creates "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 694.


For the foregoing reasons, Petitioner's motion to correct sentence is DENIED.